Brief for Petitiones — Wyandotte Transportation Co. v. United States (No. 31)

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vf Surrewa COURT. Om.

eee bes 23 1967

IN THE

- Supreme Court of the United. Stakes

OcT OBER TERM, 1967. P

WYANDOTTE TRANSPORTATION COMPANY, -

UNION BARGE LINE CORPORATION and —

. ae nae a, in. ae

ipsa er Ss Cee tay aormeaoanes

versus

UNITED STATES OF AMERICA,

’ | Respondent. .

. BRIEF FOR PETITIONERS.

LUCIAN Y. RAY,

WILLIAM D. CARLE; fit of |

McCREARY, HINSLEA & RAY, |

1550 Union Commerce Building,

— Ohio,. ;

BENJAMIN W. YANCEY, .‘*

ALFRED M. FARRELL, JR. of -;

TERRIBERRY, RAULT, CARROLL,

,YANCEY & "FARRELL,

2141 International Trade Mart

Building#®

New Ockeane, Louisiana,

f x , . Attorneys for Wyandotte

&92 .

Transportation Company.

GEORGE B.:MATTHEWS of

P LEMLE & KELLEHER,

~ 1836 National Bank of Commeree

: eos Building

- : New Orleans, Louisiana,

Attorneys for Union Barge

Line Corporation. ;

TOM F. PHILLIPS of

' “TAYLOR, PORTER, BROOKS,

FULLER & PHILLIPS,

Louisiana National Bank Building, -

Baton Oy iat 1, Louisiana, ;

J. BARBEE WINSTON, °

‘GERARD T. GELPI of “¢

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS, ;

- : Hibernia Bank Building, .

i . ‘New, Orleans, Louisiana,. 6 ’

Attorneys for Cargill, Inc., etal. - or

HAUSER-AMERICAN, “LEGAL PRINTERS", 441 GRAVIER STREET, NEW ORLEANS, LA.

—

. STATUTES INVOLVED |

- ‘QUESTIONS PRESENTED et

STATEMENT .OF THE CASE |

- ARGUMENT

_ SUBJECT INDEX .

OPINIONS BELOW .

JURISDICTION ete. ier:

SUMMARY OF pis icionmunies

The decision below is ; justified by the saaiaay

_ of the Rivers and Har ‘SAct of 1899 or by prior *

_ Jurisprudence:

The decision below i is erroneous. It i is based upon

a misconception of the doctrine of. abandonment

as applied to negligently sunken vessels, a mis-

interpretation of the word “obstruction” on-

tained in Section 10 of/the Wreck Statute afd the

. unauthorized creation, by implication, of @ non-

‘existent remedy.__- 7 sheen

. A. The Court of Appeals erréd in ruling that only

an innocent owner can: abandon his sunken

vessel. :

B. The Court of spices tongs in ruling that a

sunken vessel constitutes an obstruction to

navigation under Section 10 of the Rivers and

Harbors Act of 1899.

C. The Court of Appéals'erred fs iii that the

right of the Government t& recover remov

, expenses is implied.

There is no provision in the Disaster Relief Act,

express or implied, to permit the Government to.

recover disaster relief a. Armada from the citi-

zenry. ‘ sciccseatinil

° *

. i

os” en 6

™’~ -®

ii.

an ‘SUBJECT INDEX—(Continued)

ae i Sea ee PAGE

“CONCLUSION. Sea ame ea | cA

APPENDICES: © =... 9 ) :

A.*Order and Reasons of District cdniecma nace 41 .

. Judgment of District Court{ 2 43

_ » + B.- Opinion of the United States Céurt of Appeals a |

ane for the Fifth Circuit

C.” Opinion and Judgment-of Court of Appeal on

Petition for Rehearing... ss 61 .

_ D. Statutes Involved... Mihi Denti ie

‘E. English and Canadian Statutes. er ieee sees 75

TABLE OF: AUTHORITIES CITED

Cages: ©

- “Highlands Sioatiislins Coripovistos, Petition of, 29°.

F. 2d 87 (2d Cir. 1928) :

Loud +. Unitedd States, 286 Fed. 56 (6th Cir, 1923) fo

| Manhattan, fhe, F. Supp. 75 (E.D. Pa., 1932)._.18, 18

‘ Manhattan, The, (United States v. Atlantic Refin-

‘ . Co. ), 10 F. Supp. 45 (E.D. Pa., 1935), aff'd

a 85 F. 2d 427 (8rd Cir. 1936) aches: Ft

Texmat? The, 319 F. 24.512 (CA 9, 1963), cert. de- ~

nied 375 US. 966.13, 14, 16, 18, 29, 31, 32, 33, 34

. ° Thornton v. The Livingston Roé, 90 F. Supp. ae

(S.D. N.Y. 1950) ,

United States v. The Bessemer, 300 U. S, o<.... ‘ lz

_ United States v. Bethiehem Steel Corporation, 235 F.

E » . . Supp. 569 (D. Md., 1964)___>_- a :

mz United States v. Bridgeport Towing Line; Inc., 15: Fe, ce ee

; . J 2d 240 (D. Conn., 1926) _. 42.

| United States v. ‘Hall, 63 Fed. 472 (Ist Cir...

= ++ 1894) —— 1, 15, 24, 27, 29, 30

j ” 4)

ve ; . > . in,

: . .

= Z . a “

: o 4 ar ° :

: ° > a » ~~

e.. -

Sl ay a AR a STS ci cas OE Lr deol rdaie Oe ites neat nual ww

5 ?

i a , ; Pi . be

re ob | at *

a . "TABLE OF AUTHORITIES CITED—(Contimied)

Cases: (Continued) i ae << ~* Pee

United ‘States v. Moran Towing & Transportation:

Company, 374 F. 2d 656 (CA 4,

oo . . | Se 12, 18, 14, 19, 20, 21, 26, 29, 34, 35

United States v. Perma Paving Co., 332 F. 2d 754.

o's WAS 1004) * 29, 34, 35

United States v. . Republic Steel Corp., 362 U.S.

ks 482 27, 29, 33, 34, 35

- United States v. Standard Oil of California, 332 U.S. ‘in )

BE PS SR Rae ees |

United States v. Wilson, 235, F. 2d 251 CY eee ee ae

- 1966) 2: Penerss | 24)

“United States v. Zubik, 295 F. 2d 53° (CA 3,

1961) 15, 30, 32, 34

. Village of Palmyra v. G. m7 Warren et al, 114 Il.

o App. 562 (8rd ‘Dist., 1904). 87

_ Williamette Iron Bridge Co. v. Hatch, 125 U.S. 1. 22, 37

ubik v. United States, 190 F. 2d 278 — 8,. 1951) a

‘Federal Statutes: ;

28 U.S.C. § 1254(1) AERO EN MO oGe

. 31 U.S.C: § 725a_-__.” i

Disaster Relief Act, Public Law 875, Bist: Congress,

. 42 U.S.C. § 1855, atte: .2, 36, 37, 68

4 Stat. 32 sun , - 8

4 Stat. 173. 9

5 Stat. 129 e anew 2a | , Oe

15 Stat. 174_-° : i eee

) 9

17 Stat. 373s wile Z

21 Stat. 61

Rivers and Harbors Appropriation Act i 1880, § 4)

tat. 197__ | :

“22 Stat, 2

- Rivers and Hirbors Appropriation Act of 1888,

25 Stat. 400, 423, 424, 425 22

bokerieiy

‘}. iv ui w

27, 29, 30, 31, 37, 63

TABLE OF AUTHORITIES CITED—(Continued)

* Federal. Statutes: (Continued) "3 7 paat?

26 Stat. 454, §8_- eau 9, 22

Rivers and Harbors Act of 1890, § 10, |

26 Stat. 455__ 7, 24, 25

Rivers and Harbors Act of March 3, 1899, 30 Stat.

1121, 1151, et Seq., as amended 2, 6, 8, 9,

: 14, 22, 25, 37

* See. 9 (33 U.S.C. 401) 6; 9, 10, 11

See. 10. (33 U.S.C. 402) 10

- 23 UBS, 48) 2, 6, 7, 8, 9, 10, 11,

| | | 22 23, 24, 26, 27,

er an ee. 28, 29, 30, 31, 34, 63

See. 11 (33 U.S.C. 404)... j-&,9

See. 12'(33 U.S.C. 406) = (267,89, 1011, #

See. 15 (33 U:S.C. 409)_._-2, 7, 10, 18, 28, 26, 35, 64 .

- See. 16 (33 U.S.C. 411 and 412) ____. 2, 7,10, 26, 35, 65

Revised Statutes of Canada, 1927. Ch. 140,

* See..19 (88 U.S.C. 414) 2, 4, 7, 10,28, 26, 35, 66

. Sec. 20 (33 U.S.C. _ sateen 2, 7, 10, 11, 26, 35, 67

English Statutes: |

‘Dublin Port and Docks. Act, ‘382 & 33 Vict. Chap ¢;

- See. 96 75

tlaskenre: Docks, and Piers wrenien st Act, 1847, 10 & .

11 Vict. c. 27, Sy Rae. 75

_ Manchester Ship Canal om 1936, sec. 32 3

Canadian Statute: | : Ce.

Part II : | 85, 76 «

Aataneitainaibians Coes y

_ 33 C.F.R. §.209.410, wiatlieee: ae

Department of the Army pamphlet 27-164, “Mili- -

tary Reservations and: Navigable Waters”

(July 1961) pp. 181-182... ee a

| TABLE OF AUTHORITIES CITED —(Contnind)

Legislative Materials: | PAGE

32 Cong. Record 2297 (Senate) and 2923 (House) ..22, 23

H. R. 11727, 88th Cong:; 2d Sess. (1964) 86

"H. R. 11822, 88th Cong., 2d‘Sess. (1964) >." $6.

H.R. 2100, 89th Cong., Ist Sess. (1965) - 36.

H.R. 2842, 89th Cong., Ist Sess. (1965) 86

H. R. 17371, 89th Cong., 2d Sess. (1966) 86 |

H. R. 10593, 90th Cong., 1st Sess. (1967). _ 36 nh

; A

wrt

IN THE

Supreme Court of the United States

OCT OBER Later 1967. i

No. 31

WYANDOTTE TRANSPORTATION COMPANY,

_ UNION BARGE LINE CORPORATION and

' CARGILL, INC., et al,

' Petitioners,

UNITED STATES OF AMERICA, |

i er

‘_ BRIEF FOR PETITIONERS.

CITATION TO OPINIONS BELOW -

The opinion of the District Court entered on June 30,

1964, is reported only at 1964 A.M.C. 1742. ‘The opinion

of the United States Court of Appeals for the Fifth Circuit

is reported at 367 F.2d 971. Both opinions, together with .

‘the Court of Appeals’ opinion and order denying rehear-

ing, are reproduced in Appendices A, B and C.

JURISDICTION

The jurisdiction of. this Court is invoked under 28 .

U.S.C. ‘§ 1254(1).

The judgment of the Court of Appeals was entered on

’ July 13, 1966. A petition for rehearing en banc was timely _

“ .

filed, and an order denying the rehearing was entered on

_ September 12, 1966. The petition for a writ of certiorari

' was filed on December 7, 1966, and was — on Febru-

wd 18, 1967; (R. 174).

» STATUTES INVOLVED

The statutes involved are material parts of the Rivers

and Harbors Act of March 3; 1899, 30 Stat. 1151 et seq.,

as amended: 33 U,S.C. § 401 et seq.; consisting of § 10, 33.

U.S.C. § 403; § 12, 33 U.S.C, § 406; § 15, 33 U.S.C. § 409;

$16, 33 U.S.C. § 411 and 38 U.S.C. § 412; § 19, 38 U.S.C...

§ 414; § 20; 33 U.S.C. § 415; and 42 U.S.C. § 1855, .et seq.

3 The statutes are peinten in. -Appenidix D.

QUESTIONS PRESENTED

(1) Whether a vessel owner or other party, who by

negligence causes a vesse sink and become an obstruc-

tion to navigation, is liable.n personam to. the United:

States for the costs-incurred by the United States in re-

moving the obstruction.

(2) Whether a sunken vessel constitutes an “obstruc-

tion” to. navigation under § 10 of the Rivers and Harbors

Act of 1899 (33 U.S.C. § 403), the removal of which could.

have been enforced by injunction pursuant to the pro-—

visions of § 12 of the Rivers and. Harbors — of 1899 (33

U.S.C. § 406).

(3) Whether the funds aie by the Government

to raise WYCHEM 112 under the Disaster Relief Act, 42

U.S.C. § 1885, et seq., are recoverable from the petitioners.

/ STATEMENT OF THE CASE

Two eases are involved here. They were consolidated

by the District Court for,disposition of the motions to dis-

‘miss.and/or for summary said filed a all of the

respondents below, petitioners herein. |

In the case of United States v. Wyandotte Transpor-

tation Co., et al, involving the Barge WYCHEM 112, the

parties respondent before the District Court and the Court

of Appeals were Wyandotte Transportation Company, own-

er of the WYCHEM 112; Union Carbide Corporation; own- _

. er of the chlorine cargo; and Union Barge Line Corpora- °

tion, owner and operator of the-M/V. EASTERN, which ,

had the WYCHEM 112 in tow at the time of thg sinking. ”

The facts as alleged i in the libel and as s adopted by he Court

of Appeals were as follows:

On March 15-17, 1961, a cargo of 2,200,000 pounds

of liquid chlorine was loaded. into the tanks. of the WY-

CHEM 112-at Geismar, Louisiana, for delivery to Unioi.

_ Carbide Corporation at South Charleston, West Virginia.

On March 21, 1961, the WYCHEM 112 and other barges

in tow of the EASTERN departed from Geismar, Louisi-

ana, bound up the Mississippi River. On March 23, 1961, -

with weather and visibility.good, but. with a strong®eur-

rent, the WYCHEM 112, the lead barge on the port or

- left-hand side of the tow, began to dive, putting her bow

down and her stern up. She sank near Vidalia, Louisiana,

in the Mississippi River. Repeated efforts were made by

the owners and operators of the barge during the spring

and summer of 1961 to locate and raise the barge. These

- efforts were unsuccessful, and in November, 1961, Wyan-

dotte tendered abandonment of the barge to the Govern-

‘ment. (R. 36), On September 25, 1962, the District Engi-

neer, Corps of Engineers, Vicksburg District, wrote to

Wyandotte, advising that the Secretary of the Army had

determined that the sunken Barge WYCHEM 112 was an

‘obstruction to navigation; that. Wyandotte’s tender of

' abandonment-was accepted; that the Engineers wie oe

ceeding under the authority of the Secretary of the Army

to remove the barge under the provisions of $19 of the

Rivers and Harbors Act of 3 March 1899 (33 U.S.C. § 414) ;

and that after recovery of the Barge WYCHEM 112 and/or .

ats cargo, the United States would retain the right of pos-

session and title thereto. (R. 42) In view of the Govern-

ment’s opinion that the chlorine constituted a hazard to

public health and safety, the President on October 10,

1962, preclaimed it a major disaster. The tanks were re-

‘ moved at an alleged cost of $3,081,000. The United States -

then brought suit in rem against the barge and her cargo -

and against Wyandotte Transportation Co., Union Carbide

Corporation, and Union Barge Line Corporation. On mo--

tion of the United States, the District Court ordesed'the . ~*~

sale of the chlorine cargo, which had been seized by the

United States Marshal at the commencement of the pro-

| ceedings; and the proceeds were paid into Court pending

_. final disposition of the litigation. | |

- In'the second case, United States v. Cargill, Inc., et al,

the respondents are the former owners, managers, char-

‘terers, and insurers of the sunken Barges L-1 and M-65.

Again, the facts alleged by the Government and adopted by

the District Court and the Court of Appeals were that the -

M-65, owned: by Jeffersonville Boat and: Machine Co., and

» the owned by-Gargo Carriers, Inc., were moored by a

tug at the Cargill fleet at~Jackson’s Landing, Mile 227.5:

A.H.P., Baton Rouge, Louisiana, on® March’ 30,*1961. ¢Bhe_ +

next day the Tanker ESSO ZURICH; bound upriver for ~~" |.

Baton Rouge, collided with and sank an unmanned and

unlighted barge; which was drifting in the channel. The ~

incident was reported by radio to the barge fleet at Baton

Rouge, and the two’Barges L-1 and M-65, were discovered

missing. Although only one barge, believed to be the L-1, -

“

—_

. *

erg Om.

was located and showed marks of collision, both Barges

_ L-1 and M-65, were reported by Cargo Carriers as sunk.

Cargo Carriers then marked the barges for day and night

navigation. On April 9, 20 and 26, 1962, Inland Rivers

Transportation Co. and Cargo Carriers, Inc. wired the

District Engitreer that thef had abandoned the Barges L-1

and’ M-65 and considered the Government:as owner of the

vessels. The United States declined to accept abandonment.

_- or the-responsibility for marking and removing the wrecks.

'- .. The United States then filed a declaratory judgment ac-

tion against the owners, managers, charterers and under-

writers of the barges alleging negligence:in the condition

and mooring of the barges and praying that the Court-de-

that the responsibility “of marking and removing the

i remains with the respondents.” The barges re-

main unremoved. ~

‘The respondents in both actions moved to dismiss“and/

or for summary judgment. On J une 30, 1964, the District

' Court granted the motions for summary judgment and . -

_ dismissed both actions. (R. 146-147). In its Reasons for ~

' Judgment, the District Court held-that the orily right which

_ the Government had to recover the removal costs was an

Fa in rem right against the sungen vessels and that there was

no im personam right against, any of the respondents.

(R. 146)

_ The Court of Appeals for ts: Fifth Circuit reversed

the judgmertts of dismissal and remanded the cases-to-the

ae _ District Court-for trial and a en ka te as to whether

; "the ' sinking’ of ecg ed from th¢_negligence of

_ any of the respondents. | 15051 and- 166), The Court

_ held that if the aes are in the WYCHEM case are

found to be negligent, the Government is entitted to re-

cover those removal costs reasonably flowing from such

negligence ‘and subsequent failure to raise the barge. If

' any respondent in the Cargill case is found negligent, the

_ District Court was directed to order such respondené to

raise the two sunken barges or bear the reasonable gate

‘ . of their removal.

All of the respondents with the exception of Union

| Carbide Corporation joined fn a petition for réhearing en

bane. In a separate petition, Union Carbide requested that

‘the judgment of the District Court be affirmed. On Sep-

* tember 12, 1966, the Court of Appeals granted the petition

of. Union Carbide and denied the petition of the other

respondents. ‘(R. 167) The’ remaining respondents there-

after filed a petition for a-writ of certiorari, which was

granted by this Court on February 13, 1967. (R. 174)

‘ SUMMARY OF ARGUMENT

Never before, or since, the decision of the Court of

Appeals for the Fifth Circuit, in the instant case, has a

court held that in the event of a shipwreck, the owner of

the sunken vessel or any other party, if found negligent,

is personally liable for the cost of removal, or that the

removal of the sunken vessel may be compelled by injunc-

tive process. The jurisprudence, which includes decisions

_of the~Courts of Appeal of the’ Third, Fourth, and Ninth

Circuits, is uniform to the effect that a negligent owner or

other tortfeasor. is not personally eau. for costs of

removal of a sunken vessel.

‘The Rivers and Harbors Act of 1899 (33 U.S.C. 403; °

et wi) and the history of that Statute do not support the

a decision of the ‘Court of Appeals. Section 406 ($12),

which makes provision for injunctive relief, applies only

to Sections 401 ($9), 403 ($10), and 404 ($11). These

- Sections do not by their terms apply to vessels, and at most.

+ relate only to structures or obstructions built, erected, or . ;

4 .

: e | '

created by willful, intentional, or dettline ota: No |

court other than the Court of Appeals for the Fifth. Cir-

_ , cuit in the instant case,-has held that Section 403 (§ 10)

applies to a shipwreck if caused by negligence. -A single ©

decision, United States vs. Hall, 63 Fed. 472 (1894) of the

First Circuit, held that a vessel willfully or intentionally

sunk was an obstruction within the meaning of § 10 of

. the Rivers and Harbors Act of 1890, the Statute preceding

_ | the one presently in effect;.and its removal could be com-

pelled by injunetive process. That case, even if correctly

decided, clearly has no application to the instant case.

~The Wreck: Statute proper, which applies to ship-

wrecks, is found in Sections 409 (§ 15), 414 (§19), and

415 (§ 20). Penalties are provided for violation of Section

409 (§ 15) by: Section 411 ($16), which makes it unlaw-

ful to sink vessels or other craft in n vigable channels, and

it is significant that Section 411 (§ 16): does not provide*.

for injunctive process. The remaining Sections of the

WrecksStatute, Sections 414 (§19) and 415 (§ 20), both

give the Secretary of the Army the right to take possession

of and to remove a sunken vessel; Section 415 (§ 20) spe-"

. cifically provides that the removal expense. “‘shall be a

- charge against such craft and cargo,” and under both. Sec-

tions 414 (§19) and 415 (§20) the vessel and cargo may be -

sold.and the proceeds of the sale covered into the Treasury ~

of the United States. There is not one word in these Sec-

tions of the Statute dealing with shipwrecks about injunc-

tive relief, or giving the Government any remedy against

any party, in addition to the in rem right against the sunk-

en vessel and her cargo.

As the injunctive remedy snide by Section 406

(8 12) is applicable only to structures or obstructions other

than vessels, willfully, deliberately, or purposefully con- _— \.

‘structed or created, there is no basis for a remedy by inj-

“

plicatien in favor of the Government i in the nature of per-

sonal responsibility for the ¢ost.of removal on the _ ot

a vessel owner or = other party. -

The change: in the statute for whtth the: oT

argues should be sought through the legislative process,

where all interests, would have an opportunity to be heard,

and where the finial decision would be made, after delibera-

c tion by the- Congress.

bs _@

| ARGUMENT

THE DECISION BELOW IS NOT JUSTIFIED

BY THE HISTORY OF THE RIVERS AND

HARBORS" ACT OF 1899 OR BY PRIOR —

eat JURISPRUDENCE.

Ta holding that a vessel negligently sunkein a naviga-

ble channel constitutes. an “obstruction” within the mean-

ing of §10 of the Rivers and Harbors Act of 1899 (33°

U.S.C. $403) and that its removal may be compelled by .

injunctive process’ pursuant to §12 of that Statute (33

U.S.C. § 406), or that the owners or other parties responsi-

ble for the ‘sinking may. be Yequired to bear the costs of

removal incurred by the Government, the opinion of the ©

‘Fifth Circuit stands alone in the jurisprudence. It is the

submission of petitioners. that in so holding the Court of

Appeals misconstrued the provisions of. the Rivers and

- Harbors Act.’of 1899, and failed to follow the clear and

unequivocal jurisprudence established by all of the other

‘ circuits which have considered this matter.

~ Since the early part of the nineteenth century Congress

has béen aware of the problems involved in creating and

maintaining the navigability of thie inland waterways, and

in 1824 for the first time adopted an act to improve the

: navigation of the Ohio and. aries act = 4 Stat. 32.

Between 1824 and 1880 Congress dealt with the problem

of sunken vessels on an individual basis and. enacted spe-

_ cific appropriation bills to raise certain wrecks. See, for’

example, 4 ‘Stat. 173; 5 Stat. 129 ; 15 Stat. 174; 17 Stat.

373; and 21 Stat. 61. The first federal Wreck Statute, § 4

of the Rivers and Harbors Appropriation Act of 1880, 21

Stat. 197, gave the War Department power to advertise

notice in order to establish as a matter of law that a sunken

vessel was a derelict and made a permanent appropriation

for the removal of wrecks from the navigable waters of

the United States. In 1882, this statute was amended to

permit the sale of a sunken wreck to the contractor, 22

Stat. 208. In 1890, Congress added a provision that wrecks

not raised: within two months were subject to being broken

- up and removed by the War Department without liability

for damage to the owners. 26 Stat, 454, § 8, ,

: In 1899, Congress enacted the Rivers and Harbors Act

of 1899 (33 U.S.C. § 401, § 408 et seq., 30 Stat. 1151 et

seq.) This Statute sets forth a considered, comprehensive

_ Scheme relating to obstructions to the navigable capacity °

of waters of the United States and to sunken vessels. Sec-

tion 401 ($9) makes it unlawful to construct any “bridge,

dam, dike, or causeway” over or in any navigable water.

Section 403 ($10) contains two parts. First, it prohibits

“the creation of any obstruction * * * to the navigable

capacity of any of the waters of the United States,” and,

second, provides that it shall be unlawful to build “any

wharf, pier, dolphin, boom, weir, breakwater, bulkhead,

jetty, or other structures” in the navigable waters. Section

.404 ($11) authorizes the Secretary of the Army to estab-

‘lish certain harbor lines beyond which no piers, wharves,

bulkheads, or other works shall be extended. Section 406

(§ 12) then provides that every person violating the pro-

visions of Sections 401, 403 and 404 ($§ 9, 10 and 11) shall

10 “)

be deemed guilty of a misdemeanor and subject to fine and -

imprisonment. This Section then provides that “the re-

moval of any structures. or. parts of structures erected -in

violation’ of. the provisions of said sections” (Seetion 401

[$9], Section 402 and Section 403 [$10]) may be =

forced by injunctive process. (Emphasis supplied.) -

referénce is made to removal of the obstructions m pried

by Section 403 (§ 10).

--TThe Wreck Statute proper is set forth in 33 U.S.C.

% 409, 414 and 415 (8846, 19 and 20). Section 409 (§ 15)

makes>it unlawful to. sink, voluntarily ‘or -carelessly, or. to

'- permit or ¢ause’to be sunk, vessels or other craft in naviga- _

ble channels. ‘It«further provides that whenever a vessel

or other craft is wrecked in a navigable channel, acci--

dentally or otherwist, it shall be the duty of the owner of:

said sunken craft immediately to mark it‘and to. maintain

the marking until the sunken craft is\removed or aban-

'. doned. Finally, it is the duty of the owner of the sunken

craft to commence the immediate removal of same, and to

prosecute it diligently and “failure to do so shall be_con-

sidered. as an abandonment of said craft, and subject the

same to.removal by the United States as provided for in

the act.” Section 411 (§ 16) then’ provides that every per-

son violating the provisions of Section 409 (§15) shall be

deemed guilty of a misdemeanor. and subject to fine and _ ;

imprisonment.

- It is noteworthy that Section 411 ( § 16), the penalty

- section applicable to Section 409 (§ 15),-unlike Section 406

_ (§ 12), the penalty: section applicable to Section 403 (§ 10),

does not contain any provision authorizing the removal bf

sunken craft by injunctive process. On the contrary, Sec-—

tion 414 (§ 19) provides that whenever the navigation of.

any waterway in the United States “sliall be obstructed”

by any sunken vessel, and such “obstruction” has existed

. * : | : .

for a period longer than thirty days, or whenever the aban-

donment of such “obstruction” can be legally established

within a period less than thirty days, the sunken vessel

- Shall be subject to be broken up, removed, or otherwise

disposed of by the Secretary of the Army at his discre-

tion without liability for damage to the owners, and sny

money received from the sale of any such wreck shall be

ries into the Treasury of the United States..

_ * Seetion 415 ( g 20). gives the Secretary of ‘the Army,

“under emergency”, the right to take immediate possession

of any sunken vessel or craft;and to remove same imme-

diately. This section provides specifically that the removal

expense “shall be a charge against such craft and cargo”,

and if the owners fail or refuse to reimburse the Govern-

ment for the removal expense, then the craft or cargo may

_ be sold and the proceeds of the sale covered into the Treas-

. ury of the United States. ,

Congress has continued an annual appropriation for

- “removing ‘sunken vessels or craft obstructing or endanger- —

ing navigation.” 31 U. S. C. § 725a.

The scheme of the Statute is therefore readily appar-

ent. In the case of bridges, etc. (Section 401 [§ 9]) obstruc-

tions such as “wharves, piers * * * or other structures”

(Section 403 [§10]), or excavations or fills: (Section 403 °.

* [$10]), the violator is subject to fine and imprisonment, _

_ and the Government is authorized to require their removal

- by injunctive process, 33 U.S.C. § 406 ($12). On the other |

_ hand, in the case of obstructions resulting from.:sunken _

vessels, either “accidentally or otherwise,” the owner is

required to remove the sunken vessel or to forfeit his in-

terest therein to the Government, which is then required

- to-effect the removal and is authorized to retain the pro-_

' eéeds of the sale of the sunken craft. There is not one

. word in the Statute about recovery of these expenses from |

"any other source, and the Statute does not give the Secre-

tary of the Army any authority to compel the owner of a -

negligently sunken véssel or any other party to remove it

'_. by injunction or otherwise. . The only right against the

world is the in rem Li against the sunken vessel and

its cargo. .

As stated by the Court of pees for the Fourth Cir-

cuit in United States v. Moran Towing and Transporta-

: _tion Company, 374 F. 2d 656 (1967) (at p. 666), “Cargill

(the instant case) represents an abrupt departure from

* _ the theretofore uniform’ interpretation of the Wreck Act.”

This statement is unquestionably true. No court prior to

the instant case had held that the Government could re-

cover remdval expenses.in an in personam action. A start-

ing point in the jurisprudence is Loud v. United States,

286 Fed. 56 (6th Cir. 1923), which involved@an in per-

—sonam action by the Government against the owner of a

sunken vessel to recover ‘the amount expended in straight-

ening the vessel so as to clear the channel. The Court of

Appeals dismissed the libel saying (p..59)::

“Tt is equally clear that the owner of'a vessel

is not personally liable for the expense incurred by

the Government in removing obstructions to naviga-

tion under the authority of this section (33 U.S.C.A.,

§ 415), but, on the contrary, that the claim for such

expenses must, be asserted directly re the \ ves-

sel and its cargo.” | ) es

To the same effect is United States v. ‘Bridgeport ‘Towing

Line, Inc.,'15 F. 2d 240 (D. Conn., 1926).

One of the more important cases is The Manhattan,

10 F. Supp. 45 (E.D..Pa., 1935), affirmed 85 F. 2d 427

_ (8rd Cir. 1936), cert. denied sub. nom. United. States v. The

Bessemer, 300 U.S. 654. There, the Tanker BESSEMER, -

owned by Atlantic Refining Company, collided with and _

sank the Government. Dredge MANHATTAN... The col- .

_lision liability was litigated, and the District Court held.

that: the collision and the Subsequent sinking of the MAN-

_HATTAN were caused solely by the fault of the BESSE-

MER. -3 F. Supp. 75 (B.D. Pa., 1932). The matter was

then referred to a Commissioner for determination of the

Government’s damages, which included an item covering

the cost of raising the dredge, allegedly incurred under

the Rivers and Harbors Act. The Commissioner concluded

that the removal expense was‘not recoverable from the neg-

_ ligent BESSEMER since the Government was acting pur-

suant to a statutory duty, and said (p. 50): .

“So far as I know the right of recoupment '

against a tort-feasor who causes a sinking has

never been asserted by the government in case the

in the statute which creates such a right either in

- the case of privately owned vessels or those which

_are the property of the _government. In fact, the

_ rights in rem which are conferred would seem to

negative that intent. At any rate the statute is -

. ‘Silent upon the subject.”

The Third Circuit affirmed the opinion -of the District

_ Court. is .

The import of The Manhattan, of course, is that the

Government’s claim for reimbursement of removal ex-

penses is limited to the in rem claim against the wreck and

its cargo, and that it may not obtain reimbursement from

a tortfeasor. To the same effect are the decisions-of the

Ninth Circuit in The Texmar (United States v, Bethlehem

- Steel Corp.) 319 F. 2d 512 (1968), cert. denied, 875 U.S.

966, and of the Fourth Circuit in United States v. Moran ©

Towing and Transportation Company, supra. 3

The Texmar involved a claim ‘by the Government

against Bethlehem Steel Corporation, as owner of the

TEXMAR, ‘and Calmar Steamship Corporation, as char-

terer and operator, to recover expenses incurred in. rais-

ing the TEXMAR from a ‘navigable channel where it al-

_ legedly constituted an obstruction to navigation. The Gov-

_ ernment alleged that the vessel had sunk as a. result of the

. Negligence of both of the respondents. A motion to dis-

miss for failure to state a claim was sustained by the Dis- .

trict Court and affirmed by the Ninth Circuit, which held -

that Congress, though dealing in detail in the Rivers and

Harbors Act of 1899 with the problems arising out of

wrecks and obstructions to navigation, did not, though it

could easily have done so, create an in personam right to

' recover removal expenses. In the concurring opinion of -

Judge Duniway it is said (p..521) that “(the statute)

does not provide for liability on the part of the owner or

anyone else if the proceeds of the sale are insufficient to

pay. the government’s costs.” This statement is, of course,

important because the right to reimbursement. was as-'

serted not only against the. vessel owner, Bethlehem, but

also against its charterer and operator, Calmar.

In United States v. Moran Towing and Transporta-

_.tion Company, supra, similar claim was asserted against.

Bethlehem Steel Corporation, as owner of a floating dry.

dock, and against Moran Towing and Transportation,

whose tugs had the dock in tow when it sank. The District |

Court held for the Government on the grounds, first,

' that the floating dry dock was not a vessel, and, second,

' that if it was,-its grounding was intentional. On appeal

_ the Fourth Circuit held that the sinking was not inten-

tional, and went on to hold (p.-669) that even if the sink-

' + ing was negligent, “Neither Bethlehem nor Moran (the

tower), after the tendered abandonment, had any obliga-

Ren 6 Se a ina een i ie

tion to remove the obstruction created by the sunken dry _-

dock and no in personam liability to reimburse the United

States for its costs***. - as |

The two Zubik cases in the Third. Cireyit are to the

same effect. Zubik v. United States, 190 F. 2d 278 (CA

3; 1951), and United States v. Zubik, 295 F. 24 58 (CA

8, 1961). In the latter Zubik case, the Government’ con-

ceded that a remedy by way of damages was not explicitly —

accorded by the. Statute, but argued that one should be

implied. After an‘ exhaustive analysis of the statute, the

Court of Appeals said (p. 57) : ie

“The sumr total of the statutory scheme, except-

ing its criminal penalty provision, evidences. that.

the forfeiture right accorded to the Government to .

vessel and not an in personam right against the vés-

Sel’s owner.”> — ; ;

The only case that may be considered out of line in

' the jurisprudence is United States v. Hall, 63 Fed. 472

(1st Cir. 1894). That case involved an intentional sink-,

ing, and the Court issued an injunction under the Rivers

and Harbors Act of 1890 to compel the removal: of ‘the

_ wreck. For reasons which we will develop later, Hall does

not .bear analysis. The Court of Appeals for the Second

follow Hall.

- We repeat—there is no other case, either before or

ae after the instant one holding that the Government may re-

cover removal expenses from a tortfeasor, and there is-no

_ case other than Hall holding a sunken vessel to be an ob-

struction under Section 403 (§ 10). os

16.

he weakness of the Government’s position in this and

in other cases, notably Texmar, is indicated by its “boot-

strap” reliance on a regulation of the Corps of Engineers.

33. C.F.R. § 209.410. This self-serving regulation provides

that a person who negligently sinks a vessel in a navigable

waterway may be compelled to remove the wreck or pay for

its removal. The Court in Texmar disposed of this argu-

ment by characterizing the regulation as “an unauthorized .

effort to administratively improve the statute.” (p. 520) .

. However, in another administrative interpretation of the

_ Stafute, the ean of the Army took a contrary _

saying: a ee

“In removing an iene sunken ae from .

the ‘navigable waters of the United States, the

United States is limited in its recovery to the value

_ of the vessel and its cargo. A claim for further re-

imbursement against the owners may not be made.”

Department of the Army pamphlet 27-164, “Mili-

_ tary Reservations and Navigable Waters” (July

1961), pp. 181- 182. .

THE DECISION BELOW IS ERRONEOUS. IT

IS BASED UPON A MISCONCEPTION OF THE

DOCTRINE OF ABANDONMENT AS APPLIED

TO.NEGLIGENTLY SUNKEN VESSELS, A MIS-

INTERPRETATION OF THE WORD “OB.

STRUCTION” CONTAINED IN SECTION 10

OF THE WRECK STATUTE AND THE UN.

AUTHORIZED CREATION, BY IMPLICA-

TION, OF A NONEXISTENT REMEDY.

If the decision below were a beacon light, giving for

the first time, penetrating and accurate illumination in

what the Fifth Circuit has described-as “the statutorily -

muddied waters surrounding sunken vessels,” (R. 158)

the refusal to follow or be influenced by the decisions/ of

- 17

the other Circuits might conceivably be justified. Solitude -

or uniqueness does not alone condemn a decision as un-

sound, but where, as here, that decision is contrary to the

uniform rulings of the Courts of Appeal, of the Second,

Third, Fourth and Ninth Circuits which! considered the.

same questions and the same statutes, its soundness must

meet the test of critica] analysis. This it does not do.

THE COURT OF APPEALS ERRED IN RuLine

THAT ONLY AN INNOCENT OWNER CAN

ABANDON HIS SUNKEN VESSEL.

The District Court stated: the.issue as “whethér or

not the United States may recover damages from the own-

ers or operators of vessels which have been sunk in a navi-

gable stream with or without the negligence of the owners

and operators thereof and subsequently removed from the

navigable stream by the United States Government and

at its expense.” The District Court ruled that the only .

right which the Government has to recover the cost of rais-

ing negligently sunk vessels is a right in rem against the

vessels themselves and that “there fs no right, in personam, ©

' against the owners of the vessels, where the owners of. the

_ vessels have abandoned them. to: the Government.” (R.’

' 147)- Faced with this ruling concerning the operative

effect of abaridonment on the rights and liabilities of the

parties, the Court of Appeals in the instant case avoided

that issue. completely by ruling that only an innocent owner

can abandon his sunken vessel. This distinction between

negligent and innocent sinkings is contrary to the prin-

ciples of maritime law which antedated the Wreck Statute

and is without any support in the applicable provisions of.

that Statute. ark, |

: *

Historically, the owner of a sunken vessé@l could aban-

‘ <<

, a ae 18

don her without responspblify for the expense of. removal.

The right to abandon was not predicated upon the cause

of the sinking. The loss of the craft was no less a loss to

the owner because the sinking had resulted from negli-

gence. The Manhattan, supra; The Texmar, supra.

The above principle was carried over into the Wreck

Ctatute. After providing that “it shall n6t be lawful to

voluntarily or carelessly sink, or pe it, or cause to

be sunk, vessels or other craft: in. navigable channels,” the

Statute goes on to provide that'the owner haSthe duty to

mark the wreck and to maintain the marks until t

~ eraft is removed or abandoned. The section concludes by

placing a duty on the owner, of immediate removal with

the provision that a failure to do so shall be considered an

abandonment of the craft and subject it to removal by the

United States. Rivers and: Harbors Act of 1899 §15 (33

U. s. 6.§ we.

It is ‘shandeisil Mone that, although by. statute the

negligent sinking of a vessel is ‘unlawful, the duties of both

the owner and the Government after the sinkin re not

related,in any way, to the cause of the sinking. ,It is also

clear that the right, indeed the obligation, of the Govern-

ment to remove the obstruction is based on the theory that

“if the sunken vessel is a menace tenavigation its disposi-

tion is a matter of publjc concern”. The ase nict supra;

see -, The Texmar, supra.

7 That the Wreck Statute recognized and preserved the

_ right of abandonment given by the general maritime law ‘

and the ¢orrelative limitatjon of the Government’s right

against the world to ani rem claim is evident from the

following language in Petition of Highlands Navigation

Corporation, 29 F. (2d) 37, 38 (2 Cir. 1928):

ome

The Court of Appeals for the Fourth Circuit in

“The Rivers and Harbors Act of March 3, 1899

(U.S. Code, Title 33, [33 U.S.C.A.] §§ 409, 414,

415), recognized the right of abandonment given

by the general maritime law, and ‘points out the

intention of Congress to preserve that right.”

5 a- ,

case-of United States v. Moran Towing & Transportation

Company, supra, considered this issue of sufficient im-

~ portance to require the following subheading in its épin-

ion: “Does the Presence’of Negligence Defeat the Right

of Abandonment?” In answering that quéstior in the nega-

tive, the Court said (p: 666) :

“The District Court-rejected the contention that

when a vessél founders as a result of negligence

attributable to the owner, the owner has no right of -

abandonment under the Wreck Act. Here-the United

States strongly urges its contention that the owner

does not, and it now has the support of a recent de-

E’P° .

@---;

cision of the Fifth Circuit in United States v. Car- -

gill, Inc.,'5 Cir., 367 F. (2d) 971. We agree with

the District Court.” - ;

On page 667, the Court continued :

“In contrast, there has been a récognized right

of abandonment of a wrecked vessel, unless scuttled

- intentionally, without any in pexsonam liability for

the cost of its removal even if-it is an ‘obstruction

of navigable waters. This was the assumption of

_the Congress which enacted the Wreck Act. That

was.the conclusion of the Court in The Manhattan

_ (United States v. Atlantic Refining Co.) E.D. Pa.,

10 F. Supp. 45, citing Winpenny and Chedester v.

', Philadelphia, 65 Pa. 185. Abandonment had been

¢ 6%

recognized in § 8 of the.Act of September 19, 1890,

“26 Stat. 450, which. was substantially repeated in

1899 as § 19 of the Wreck Act. ‘The addition of the ’

provisions of § 15 significantly worked no change in

* the provisions of the 1890 Act.” |

aD 4,

ot: 200

In an effort to support its conclusion that a vessel

owner “may not insulate himself from liability for proved —

negligence”, the Court of Appeals in the instant case refers

to the essential federal interest which the Government has

‘in the Mississippi River, as a national highway which must:

be protected. (R. 162, 163) This, says the Court in Moran .

Towing is oper by a “long history of governmental en-

couragement and support of water-borne commerce.” The

effect of placing a premium upon negligence with its con-

sequent denia? of statutorily accorded relief is considered

in Moran Towing (pp. 668-669) :

“Cargill adds the rationalization that the na-

| tion’ s waterways exist and, at considerable expense,

are maintained by the government for public use,

and that no one with substantial impunity, ought to.

be allowed negligently to create obstructions in

‘ them. There has been, however, a long history of

governmental encouragement and support of water-

borne commerce. The modern ship construction and

operating subsidies are extreme examples. It has

thus been. thought, that the theory of the abandon- »

ment principle was that the owner who has lost his

} vessel has suffered all the economic loss which should”

be visited upon him, and that removal of the wreck,

if it constitutes an obstruction to commerce, should

be a public obligation. The risk of such liabilities

_might be a very substantia] deterrent of maritime

activity or the acceptance of hazardous cargo. The

owner of the barge laden with chlorine gas with

which Cargill dealt is an example. The Govern-

“™ment’s claim exceeds $3,000, 000.” ( — sup-

plied.) , . :

~ This Court. knows that Saturn space vehicles are mov- |

ing by barge from Huntsville, Alabama, to New Orleans,

Louisiana, and to the Mississippi Testing Facility and

from these points to Cape Kennedy. Petroleum, chemical

and otner exotic cargoes are oe» moved daily by barge

‘is an! error 0

21.

and towboat on the’ Mississippi River and other inland

waterways as are fuel, arms, and munitions for the armed

. ‘forces. The new liability sought to be imposed upon water

carriers in the instant case may well require them to limit

their operations to the ruh of the mill, non-hazardous cargo.

The language of the Fourth Circuit in Moran Towing shows

that that’ Court also recognized that the nature of these

cargoes makes it imperative that the rights and remedies

of all those interested, including the Government, be at

all times clear. (p. 669) .

“Moreover, since in almost every foundering

.. there will be some basis for.a claim of negligence

on the part of the owner or operator, extension of

an in personam liability for a negligently created

obstruction would, result in great uncertainty and

extensive litigation before the obligations of the

owners and operators can be ascertained. The old

rule, the one which logically derives from the stat-

utes, at leagt has the virtue of clarity and certainty

in application.” (Emphasis supplied.)

The Court of Appeals in the instant case was not able

to point to any sanguage in any section of the Wreck Stat-

ute which either@xpressly or by inference supported its

conclusion honcerning the right to abandon. It based that

- | conclusion upon: what it arbitrarily states is a “correct

‘reading. of the statute’. (R 162) No ‘other court has so

read the statute and no other court has required “inno-

‘ eence” to be a pe. This misreading of the Statute —

fundamental, importance because. only by, *

denying a negligent vessel owner the right to abandon

could the Court of Appeals lay the foundation for its hold-

ing concerning in personam liability. Had the Court of

Appeals conceded that right, it would have been required

to affirm the District Court. - Pe ear

TM ECRE PALL IA Apa it Ni MY I Te Nea GT

7, >?

« A

a ee

22°

THE COURT OF APPEALS ERRED IN RULING .

THAT A SUNKEN VESSEL CONSTITUTES AN.

_- OBSTRUCTION: TO NAVIGATION: UNDER

SECTION 10 OF THE RIVERS AND HARBORS

_°.. ACT OF 1899. é

Section 403 (§ 10). was part of a scheme to solve prob-

Jems other than sunken vessels which constituted obstruc-

tions. After this Court in Willamette Iron Bridge Co. v.

‘Hatch, 125 U.S. 1, 8, ruled that there was no “common

law of the United States” which. prohibited obstructions —

in navigable waters and that it rested with Congress to

fill the gap, Congress promptly passed an act controlling

the height, span, and’ placement of: bridges, and bridge

piers and abutments. Rivers and Harbors Appropriation

Act of 1888, 25 Stat. 400, 423, 424, 425.. Two years later,

Congress made it unlawful to cast off stone, earth, rub-

bish, wreck, or other waste of any kind which might ob-

struct navigation. It was made unlawful to build any

wharf, dam, breakwater or structure of any kind which

might obstruct navigatior’ and prohibited the-creation of -

any obstruction, not affirmatively authorized by law, to

the navigable capacity of any waters of the United States.

Sunken vessels were not considered within the purview of

these sections inasmuch as they had been separately dealt

” with ‘in 1890 when Congress amended prior wreck statutes

to provide that wrecks which were not raised within. two

- months were subject tocbe broken up or removed without

liability for any damage to ‘the owners. 26 Stat. 454, Sec-

tion 8.

The River and Harbors Act of 1899, 30 Stat. 1121, .

| 1151- 1155 ‘brought all of the prior ‘statutes together in

revised form. The bill was presented to Congress as a

codification of existing laws. with no essential changes. 32

.23 | —

Cong. Record 2297 (Senate) and 2923 ( House). It is sig-

nificant that Congress did not merge the sections relating.

to obstructions (structures) not affirmatively authorized

by law and the sections relating to sunken vessels, and it

is significant that different remedies were provided.

For years the Government has’ contended, without

Success (until the decision of the Fifth Circuit in this

case), that such a merger exists.’ It has needed a judicial

declaration that the creation “of any obstruction, not af-

firmatively authorized by Congress, to the navigable ca-

pacity of any of the waters of the United States” as set

forth in §10 (Section 408) included sunken vessels,- for’

otherwise the injunctive. relief provided in § 12 “(Section

406) would not be available, and the Government would

be compelled to follow and be bourid: by the procedural re-

quirements of §§15 and 19 (88/U.S.C. §409 and 38

U.S.C. § 414). |

Not only is there no historical justification for ex-

panding the “structures” which are proscribed by -§ 10.

(Section 403) to include “obstructions,” regardless of their

nature or how they got there, but to do so is violative of a.

- common sense construction of its provisions. The section,

on its face, deals with entities which are immovable and

. permanent and which involve construction; none of these

attributes is possessed by sunken vessels. The first phrase

of §10 (Section 403) prohibits obstructions “not affirma-

tively authorized by Congress.” This phrase would be com-

pletely. redundant if it included sunken’ vessels because

Congress, in other sections, had made it unlawful to “vol-

untarily or carelessly sink, or permit or cause to be sunk,

_ vessels or other craft in navigable channels.”

‘The Court of Appeals in the instant case based on its

decision primarily on the opinion of the First Circuit in

United States v. Hall, supra. In that case a: vessel was

intentionally scuttled; andthe Government brought an |

action to compel the defendants to remove the hull on the _

ground that it constituted an obstruction to navigation.

_ The Court held that §10 of the Rivers and Harbors Act

of 1890 was. intended to’ apply to all obstructions of a

' permanent character, not authorized by law, ‘and that

vessels sunk in harbors by the voluntary act of their own-

ers were obstructions within the meaning ofthat §10. __

The § 10 of.the Rivers and Harbors Act of 1890, under

which Hall was decided, was substantially different from

$10 (Section 403) of the present Statute. It provided:

“That the’creation of any obstruction, not af-

firmatively authorized by law, to the navigable

capacity of any waters, in respect of which the

United States has jurisdiction, is hereby prohibited.

* * * Every person and every corporation which -

shall be guilty of creating or continuing any such

unlawful obstruction in this act mentioned, or who

shall violate the provisions of the last four preced-

ing sections of this act, shall be deemed guilty of a

misdemeanor * * * [T]he creating or ‘continuing of

_ any unlawful obstruction in this act mentioned may

be prevented and such obstruction may be caused

to be removed by the injunction of any circuit

oun *.** .* :

There was, accordingly, express authority for the injunc:

tive process. ; 3

An identical contention was made in United States v.

Wilson, 235 F. 2d 251 (2d Cir. 1956). There the United

States brought an action to compel the defendants ' (suc-

cessive owners of a sunken barge) to remove a sunken

barge from the Hudson River. on the authority of Hall.

There was some evidence that the barge had been deliber-

ately scuttled, but no finding to that effect. The Court

‘first held that § 10. of the 1890 Statute, which. prohibited

both the creation and continuance of an obstruction and

afforded injunctive relief, was repealed by the 1899 Stat-

ute. It then passed to the question of whether. or not the

Government was entitled to an injunction under the later —

Act, saying (p. 258): | if i |

‘“Thus the problem is resolved to this: Is the ©

Government entitled to an injunction under the

later Act? ;

“As. to this, the dnly section of the later Act

. . .which contains injunctive provisions possibly ap-

plicable here is §12, 33 U.S.C.A. '§ 406. The in-

junctive power so provided, is expressly limited to

‘the removal of any structures or parts of structures’

erected in violation of the provisions of’ §§9, 10

and 11 of the 1899 Act. _33 U.S.C.A. §§ 401, 408

_and 404. Clearly, our sunken barge is not a struc-

ture prohibited by §§ 9 and 11 which were concerned

with bridges, dams, piers, wharves, ete. Nor, we

hold, was it a ‘structure’ as denounced in § 10, 33 ; ae

U.S.C.A. § 408. In re Eastern Transportation Co.,

_ D.C., 102 F. Supp. 913. That section prohibits, first,

_ “The creation of any [unauthorized] obstruction

* * * to the navigable capacity’ of United States

' waters, and, second, the building of ‘any_wharf, |

pier, dolphin, boom, weir, breakwater, bulkhead,

jetty, or other structures’ in any port, etc. (Emphasis

supplied.) It thus makes a: plain distinction be-

tween ‘obstructions’ and ‘structures.’ Section 12,

33 U.S.C.A. § 406, deliberately we think, restricts.

its injunctive power to ‘structures’ and thereby ex-

cluded from its injunctive Scope the ‘obstructions’

denounced by §10, 33 U.S.C.A. § 403. This con- .

struction, which we think required by the plain

language of the Act and its context, is corroborated

by the strong intimations of §§ 15 and 19, 33

. wtf “4

. =

U.S.C.A. §§ 409 and 414. Since the injunctive pow-

ers conferred by § 12 are limited to the removal of

structures violating §§ 9, 10 and 11, clearly they do

not extend to violations of $§ 15 and 19. Under § 15

it is the duty of the owner of a sunken craft to com-

mence.the immediate removal thereof. But failure .

~ to remove is ‘considered as an abandonment’ there- -

of which is ground for removal by the United States |

as provided by §19. And § 19. confers power on the -

Secretary of War to remove the craft with provision

(not to charge the cost of removal. to the owner) to

' forfeit the craft to the contractor employed to. ac-

complish the removal.

“Thus we find nothing in’ the 1899 Act which

.. justifies an injunction whereby the cost of removal

's may be.saddled upon any of these defendants. This

conclusion is in ‘accord with In re Eastern Trans-

portation Co., supra, On this ground we hold that

the dismissal was rightly granted.”

The distinction between “obstructions” wader the

Wreck’ Statute (§§ 15, 16, 19 and 20 [33 U.S.C. §§ 409,

411, 412, 414 and 415]) and “structures” under §10 (33.

U.S.C. § 403), which the Court of Appeals below refused.

to recognize, is clearly. set forth in United States v. Moran

Towing and Transportation Company, supra, (p. 662) :. *

“It. is.readily apparent. that the Rivers and

Harbors Act of 1899 was concerned with two, large-

ly if not wholly, mutually exclusive classifications.

In §§ 401 and 408, there are prohibitions against the _

‘construction of bridges, dams, dikes, causeways,

walls,.-piers, dolphins, booms, weirs, breakwaters,

bulkheads and jetties without "the prior approval of

the Chief of Engineers and the Secretary of the

Army, if they extend into or over navigable waters.

_ Excavating, filling or altering the course or capa-

city of any port, canal or channel is similarly pro-

. hibited, unless authorized, and the prohibitions of

§ 403 are introduced by a general prohibition of any

27 semen

obstruction to the navigable capacity of waters -

without congressional authorization. These prohi-

bitions aré directed, generally, to structures and the

product of construction work deliberately erected

or created -and intruding into er over navigable — «

waters. The primary remedy provided for the re-

moval of any such unauthorized structure is a-man-

datory injunction requiring. its creator to remove

the structure or obstructions. The removal, of

course,.is at the expense of the offender.

“In contrast, §§ 409, 411, 412, 414 and 415,

collectively Lnown as the Wreck Act, apply to ob-

structions in navigable waters created by vessels or

other craft-anchored, moored or sunk in navigable ”

waters.” (Emphasis supplied. )

Although conceding: that the cases of United States v.

Bethlehem Steel Corporation, 235 F. Supp. 569 (D. Md.

1964) ; United States v. Perma Paving Co., 332 F. (2d) 754

(2 Cir. 1964) and United States v. Republic Steel Corp.,

362 U.S. 482 did not deal with sunken vessels, the. Court -

of Appeals here concluded that they afford support for its

conclusion that the injunctive remedy accorded by.§12 |

eae 406) is applicable to such obstructions. (R. 161):

The decision of the District Court in Moran Towing

(United States v. Bethlehem Steel Corporation) was re-

versed on February 10, 1967. The decision of the Court

of Appeals for the Fourth: Circuit in that case has’ been

discussed herein at some length. On the issue at hand that

Court declined to follow Hall and ruled that § 10 (Section

403) was not applicable.

Before considering the Perma Paving and Republic

Steel cases it should be pointed out that Clause 3-of §10 —

(Section 403) states

“«* * * and it shall not .” lawful to excavate

or fill, or in any manner to alter or: modify the

course; location, condition, or capacity of, any port,

roadstead, haven, harbor, canal, lake, harbor of .

* refuge, or inclosure within the limits of any break-

water, or of the channel of any navigable water of

. the United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the

same. Mar. 3, 1899, ¢ 425 $10, 30 Stat. 1151.”.

(Emphasis supplied.) . | :

_ Perma Paving involved the removal of silt. which had

- been forced into a channel by reason of the defendant’s

overloading of its property. The Court ruled that, a viola-

"tion of the abovementioned prohibition against filling .

channels had occurred, and concluded that inasmucl as

the Government could have forced Perma Paving to remove

the silt, it could recover its'reaSonable expenses in doing so.

In discussing the question of in personam liability, refer-

ence was made to the cases holding a negligent owner of

an abandoned shipwreck immune from personal Kability

for its removal and the Court said at 332 F. (2d) 758: _

_“* * * It is énough here that the detailed pro-

visions with respect to wrecked vessels contained in. __

33 U.S.C. §§ 409, 411,°412, 414 and 415, afford a |

far stronger basis for immunizing the owners of

wrecked vessels from in personam liability for the

costs of removal than any of the statutes relevant

to this case. Indeed, the author of the principal ,

_ opinion in the Bethlehem case [Texmar] seemingly

assumed that the Government .could have recovered

the costs of dredging the channel on the facts in

Republic Steel?°319 F.+(2d) 518. (Emphasis sup-

plied.) . ds ee eae ae

_ | After discussing the fundamental differences between _

actions which involve a deliberate violation of 310 (Sec-

tion 403) and the rights which are accorded the owner of.

a sunken vessel unless the sinking was intentional, the

_« tion 406. (§ 12), would, in effect, be operating under’ a.

age

. » Court in Moran Towing had this to say concerning both -

. Perma Paving and Republic Steel, ( p. 668): | ®

. “Tf there was a recognized immunity from an °

im personam liability for the excess cost of removal.

of an abandoned’ wreck when the Congress enacted

_ the Wreck Act in 1899, there can be no logical in-

ference of liability in this ‘area by analogy to Re-

public Steel or Perma Paving. All of the relevant

cases; far closer to the understanding and assump-

tions of the times ‘than we, find such an immunity |

predating or implicit in the Wreck Act. This lends |

‘weight to their expositions, and undermines any

analogy to be drawn from Republic Steel and Perma

Paving.” (footnote omitted.) - ; |

' The Court of Appeals in Moran Towing was of the view

that the ruling of this Court in Republic Steel did not

. justify an extension of § 10 (Section 403) to shipwrecks,

beyond the Hall exception of a deliberate scuttling. 374 >»

F. (2d)/at pp. 666, 667. - sh :

. ~The Court of Appeals in Feamar also found Republic

Steel to be distinguishable. It pointed out that this Court.

had treated the silting of the river bottom as the creation

of an obstruction.within the meaning of 33 U.S.C. § 403

($10) and that if the injunctive’ relief provided by 33

U.S.C. § 406 (§ 12) was not available, the free navigability

of the channel would be sexjously impaired and Republic

Steel Corp., by repeatedly paying the fine imposed by Sec-

license. It found that situation to be clearly distinguish-

able from an obstruction created by the wreck of a vessel

and declined to ‘find a remedy based upon inference. It

also declined to aceept the implied right to injunctive relief

against depositing? mere industrial waste in a river as

'eveating .an implied cause of action to collect indemnity

from a vessel owner for the remova] of a wreck...

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_ The Court: of pers, for the Third Gircuit in. the

United States v. Zubik, supra, also- declined ‘to equate an.

‘ implied right to amp relief with an implied ‘cause of

action to recover removal expenses. An rejecting that drgu-

_ ment, the Court said (p. 58) :

“United States v. Republic Steel Corp., supra,

has no impact upon the issue in the instant case.’

The questions there presented and decided are en- ,

.tirely unrelated to the problem here involved.”

Thus, alone, among all the cytuits which have con-

idered this question, the Court of Appeals for the Fifth

Circuit finds a vessel an obstruction: under §10 (Section

403) and therefore subject to the injunctive power of § 12

(Section 406). The only alleged support it has is Hall and

that decision is distinguishable, both upon its facts res the

statute which it construed.

ee .

THE COURT OF APPEALS ERREDIN RULING °

THAT THE RIGHT OF THE GOVERNMENT

TO RECOVER REMOVAL EXPENSES IS .

, IMPLIED. ig ted

' Having held that the Givensiient by injunction may

compel removal of a vessel negligently sunk, the Court of

Appeals, conceding that the statutes.dd not ‘specifically

authorize a suit. by the. Government for the recovery of

removal expenses, based the existence of such a right upon

implication. It reasons that it is illogical to assume that |

having been given the right to remove a sunken: vessel the -

~ Government “in order to gain full benefit from the statu-

tory. provisions must wait for the slower injunctive proc- —

. .- ess.” It writes off the in rem remedy, which is expressly

provided, by stating that it flows from the ownership of —

os © ae

the vessel and was not intended to “preclude recovery of

reasonable removal eosts-from a tortfeasor.” (R. 158)

The ultimate conclusion that the in personagn remedy -

exists by implication must necessarily be based upon the

foundation that none of the provisions of the Wreck Stat-

- ute apply; that §§ 10 and 12 (Sectiéns 403 and 406) are’

alone controlling and that the ‘right to injunctive relief .

carries with it an alternative remedy. If, as we haye |

demonstrated, a sunken vessel is nota § 10 (Section 40

~ “obstruction”, then the injunctive remedy of § 12 (Section

406) is-not available and there remains: nothing upon

which an implied right or remedy may be based., Congress

has declined to create such a right, and the Court.of Ap-°

peals was without justification in doing so. The Court

in Texmar declined to read anything in® the Statute. It

stated (319 F. (2d) at p. 520): -@

“Looking to the Rivers and Harbors Act for’

the answer to our problem, as we think we must, we.

find that Congress, though ‘dealing in detail with

the many problems arising out of wrecks and ob-

structions to navigation, has not, though it would

have been natural and logical for it to have done so

if it so desired,- created the right which the Govern-

"ment here asserts. ; rat ; .

We conclude, then, the Congress,*in the light. et

of the historical law of shipping, which seems to .

have included a right of-an owner to abandon a

wreck with impunity, probably did not intend to

create, in the Rivers and Harbors Act,” the obliga-

tion. im personam which the Government here as- __

serts.. If we are correct in this estimate, this court *

should not read such an obligation into the statutes.”

(Emphasis supplied.) . ete

' On the question of the obligation of the courts to re-

frain from. creating a new liability when Congress has .

)

a. ;

32.

declined to do so, this Court in United States v. Standard

Oil Company of California, et al, -332 U. S. 301, (316-317,

said this: . ;

wie Sf * United States is thé saiede

: plaintiff to” the suit. And the United States has

power at any time to create the liability. The only

question is which organ of the Government is to -

make the detérmination that liability exists. That

decision, for reasons we have stated; is in this’ in-

stance for the Congress, not for the Courts. Until

it acts to establish the liability, this Court and oth- .

he ‘ers should withhold cregtive touch.” Se asec sup-

- plied.) ~ y

also warned against “judicial legislation”. He said sad

F. (2d) atp.522): - *

‘such a result when the Congress has not provided

: for it. The matter should be left to the gress,

eh ee Te eee

Judge Duniway, in his concurring opinion in Texmar,

“I do not thfhk that the — doh POT

so the conflicting interests can be heard and .- .-

a _ the relative merits of their varying ‘positions can -

Ls be evaluated, first by appropriate committees and ‘_;

Rant atm ecg

plied.)

p. 58): 9

“The Go emails contention that the Rivers

and Harbors Act should be given a construction by

: : the courts to accord remedies not therein ‘explicitly

: s accorded’ because the legislation ‘contemplates’ the

| asserted remedies is plainly an effort to achieve

judicial fegislation. The teaching of the Supreme

Court to the contrary si the beginning of our

constitutional government is so manifest that cita-

tion is not required. 7

OI i RES Land Peel tia BAS et duel De

then by the Congress as a whole.” ( or sup- '

’ Similarly, in Zubik, the Court said (295 F. (2d) at

a ee.

Pe ee,

of the courts to legislate and where Congress has

legislated in a particular field explicitly and with

definiteness as it has in the Rivers and Harbors

Act for the courts to expand the periphery of the

legislative scheme would be judicial trespass.”

< , The Court of Appeals in the instant éase relies upon _

e Republic Steel as support for its conclusion that Congress

intended that appropriate civil remedies could be. inferred

even though, because of lack of clarity, the statutes do not.

so provide. (R. 163, 164) Before discussing Republic Steel

in this connection, we quote the words of Judge Duniway in

‘Texmar in answer to the assertion that the providing of a

- civil remedy had escaped e attention of the draftsman.

He said (319 F. (2d) at p."21): te ay

«| “& *S* My reading of this statute leads me to

- « believe that Congress, in enacting them, did put its

mind on‘ the question now before us and intended

that the liability should be limited to. whatever the

United States can get for the vessél * baa ol ’

_ After considering various provisions of the Wreck

Statute dealing with removal of sunken vessels and the

"expense incurred in connection therewith, Judge Duniway

went on to say'(p. 522): ° ie

ip “* * * It even expressly dealt with failure or

refusal by the owner to reimburse the United tates .. '

_ for such expense. The only remedy it provided wags

a sale of the craft or cargo, the proceeds to be cov-

ered into the Treasury. Surely the alternative of a

remedy by suit against the owner for the amount

of the expense could not have ‘escaped the attention.

of the draftsmen, but-they did not provide for it.”

(Emphasis supplied.) %

- It has been’ heretofore pointed out that Republic Steel’

did not involve sunken vessels nor a consideration of any °

; . . ; ° is

. * - e

Selanne Me Lee 8 Genie ND OMG ie or

oo 34 ee

. of the provisions of the. Wreck Statute ‘whith deal with |

' such craft. The Courts which decided Moran Towing,’

Texmar and Zubik all concluded that Republic Steel is dis-

tinguishable. None of them, accepted that decision as sup- |

porting the broad. proposition that-courts are not required

. * to take a statute as it ne it.

This Court i in Republic Steel ruled that $10 (Section

403) “defines the interest of the United States which the —

. » injunction serves”, 362 U.S. at p. 492. On the same page,

_ the opinion goes on to state that Congress “has provided

enough federal law in § 10 from which appropriate reme-

dies may be fashioned even though they rest on inferences.

Otherwise we impute to-Congress a futility inconsistent

_with the great design of this legislation.” In the case at |

.. (bar, it is crystal elear that §10 (Section 4038) does not

‘define the “interest of the United States” which is to be

here. protected, and unless this Court is prepared. to dis- .

regard all of the provisions of the Wreck Statute and to ~

find that § 10 (Section 403) is alone controlling, it cannot -

justify even the existence of an injunctive remedy, ~let

‘alone ‘the right to recover the expenses of removal. The

Court, in Republic Steel, found it necessary to: “fashion a

remedy based upon inferences” to avoid: the “imputation -

of Congressional futility”. The “futility” does not exist in

connection. with sunken vessels: When they become ob-

structions, each procedural step is spelled out in unntis-

takable language, and a remedy is provided. To base an-

other and completely different remedy upon an inference

would do violence to all accepted —* of legislative

construction.

In Perna Paving the Court was also dealing with § 10

(Section 403). The Court, itself, recognized that the de- °-

- tailed provisions relating to. wrecked vessels set forth . ‘in

| A

| ee

gait | Wipe ,

_ 83 U.S.C. §§ 409; 411.414, 414 and 415 (8§ 15, 16, 19 and °

» 20) were not involved (832-F.42d) at p. 758). Its ruling

-represerits an extens on of the remedy of. injunctive ‘relief

to. permit the recovery of damages by the Government.’ The

" Court in Moran Towing was of the view that ( 374 F. (2d)

at P- 667) : .

ay “* * * Derma Paving added a Kasonable and”

aan . logical remedy for the rectification of an established

! __. Wrong; if one can be required by an affirmative

injunction to remove the silt he hag deposited in a

_Ravigable channel, he may be required to reimburse

the United States for i its reasonable costs in effect-

ing the removal for him”.

The supplementing of an established remedy is far

different than the creation, by implication, of a new ‘and

different one. There is no sound analogy te-the present

situation.to be drawn from either Republic Steel or Perma

ie <ahicae oe

The error of the: Court of Appeals. for the Fifth Cir- |

cuit’s reading into the current Statutes, by implication,

the remedy the Government geeks is:made more evident

by a reading of English Wreck Statutes and the Cana-

dian Wreck Statute, both of which provide for in personam

‘liability in connection with the removal of wrecks. Such

\ remedies, where intended by Legislators, are easily and

clearly set. out and require no implication. The creation .

or fashioning of new legal remedies, as the Government

and the Court of Appeals for the Fifth Circuit in the in-

stant case would undertake, properly and traditionally is.

a function of the Legislature and-not the Courts. This is

made startlingly clear by the fact. that four members of

Congress, obviously recognizing that the applicable stat-

1 Please see — portions of Canbélan and English statutes in

Appendix: E.

— 7) ° _ " r 4 .

- ‘ 7 . ‘

z= a. aes os wk:

= & . Pat

> ee Ws ‘ y . . ,

36°

utes & not provide the im personam sitll the Govern-

ment ‘seeks, in recent years have introduced no less than -

. six bills to authorize the ‘United States to recover, from °

sources other than the wreck" itself, the” costs incurred in |

removing wrecks from nee: waters.2 All of these -

bills have been referred to-the Committee on Public Works.

wf Congress now. is: attempting to provide the remedy tlhe

Government seeks in this case. This is-as it should be, for

there all of the many interests involved properly and ade-

quately can, have their positions presented: ‘The creation

of the new remedy the. Government ‘seeks’ .in the instaXt,

case; if it is to be created at all, is not the function of the

Judicial. system and should be left to the Congress.

aie . THERE IS NO PROVISION IN THE DISASTER

RELIEF ACT, EXPRESS OR IMPLIED, TO PER- ~

4 MIT THE-GOVERNMENT TO RECOVER DIS-

; ASTER RELIEF EXPENDITURES FROM THE .

4 oe] CITIZENRY. ‘

j In Article VIII of itsdibel the Government alleges that’

tm ‘on October 10;-1962 the “casualty was proclaimed a major

disaster” under the provisions of the Disaster Relief Act,

' . | Public Law 875, 81st Congress, 42 U.S.C. § 1855, et seq.

and in Article 1% that “the tan ere removed with ex-

treme care ‘against any puncture and with a mobilization

- of the Civil Defense, Public Health and State Authorities

under the Disaster Relief Act * *.* .” |

ibenion 1855 of Title 42 of the United States Code ray

clares the intent of Congress to be “to provide:an orderly

- and continuing means of assistance by the Federal Gov-

te . 2 H.R. 11727; June 24, 1964, Representative Robert McClory. H.R.

- 11822; June. 29, 1964, Representative bert E. Jones.. H.R. 2100; Janu-

ary 7, 1965, Representative Robert E: Jones. H.R. 2842; January 14,

~ 1965, ’Represen e John S. Monagan. H.R. 17371; i 26, 1966,

* - Rep rank Horton. H.R. 10593; June 6, 1967 epresentative

Ss. ere s

or . ad

Ro.

their responsibilities to alleviate suffering and damage.

resulting from major disasters, to repair @ssential publie |

facilities in major disasters, and to foster the develop-

ment of such state and local * organizations .and plans to

‘ernment to States. and local governments pee out »

in cope with major disasters as may be necéssary.” There is

nothing in the Act itself nor in the legislative history of

- the Act to support any claim that the participating fed-

era] agencies may seek reimbursement fr@m private parties

who could be said to have created the disaster. Nor is there

any basis in the common law for such a remedy.: See,, for

example, Williamette Iron Bridge Co. $s. Hatch, 125 U.S.

1; Village of Palmyra vs. G. S. Warrel et al, 114 Hi-«App,

-562 (8rd Dist., 1904) ; ‘Thornton vs. The Livingston _

» 90 F. Supp. 842 (S.D. N.Y. 1950).

Although the libel plainly indicates that the funds:

- Sought to be recovered were not disbursed by the. Corps of

Engineers under its appropriation for administering the

Rivers and Harbors Act of 1899, but were allocated by ex-

ecutive proclamation under the Disaster Relief Act of

1950; the Government has not nor can it show any legal

basis or Congressional intent permitting the sovereign to

— disaster relief costs from the citizenry. )

_CONCLUSION

The Wreck Statute provides for, and the jurisprudence

"has consistently recognized, a difference between obstruc-

tions or structures erected or created by design, intention,

and calculation on the one hand, and sunken vessels or

_ Shipwrecks on the other. Clearly, Section 406 (§ 12), pro-

viding for injunctiye Yelief, has_no application to negli-.

gently sunken vessels, and personal liability. for the cost of —

removal on the part of the shipowner or any other party

—. be implied. The decision of the Court of er

LEH eae Aaa ASRS oh SNE CON ONS eS On CN Oe ee oe

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. ‘

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: . ; ‘ 38

7 Py ’ °

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° C . -

- for the Fifth Circuit holding to the wonteney should be re-

* versed, and thé judgment of the District Court i in favor of.

pétitioners reinstated. Sr \ 7 | .

~»

Respectfully submitted, Sy hela

} _ #4 QUGIAN Y, RAY

5 in eee A WILLIAM D. CARLE, IIE of

eee . McCREARY, HINSLEA & RAY,

1550 Union Com#fierce Building,

x Rese i Ohio, :

a aie ‘BENJAMIN W. YANCEY, ' be

_ ALFRED M. FARRELL, IR. of :

= Ta ea alen ms TERRIBERRY, RAULT, CARROLL, ~

<a WED ="s YANCEY & ’FARRELL,.

. 2141 International Trade Mart

. - _ Building,

New Orleans, Louisiana, ’

aarnewe for Wyandotte *5

mee ° Transportation Company.

. GEORGE B. MATTHEWS of: ~ +

oes .LEMLE & KELLEHER, e:

1836 National Bank of Commerce Tareas

New Onion, set ON eon

= Pe ee ; ana,

ae ne | 8s for Union Barge

eee ae i ome for Union

a ‘ TOM F. PHILLIPS of

: a TAYLOR, PORTER, BROOKS,

: FULLER & PHILLIPS, .

Louisiana’ National Bank Building,

Baton eg 1, Louisiana,

4 J. BARBEE WINSTON,

‘ GERARD T. GELPI of . .

PHELPS, DUNBAR, MARKS, Fi

CLAVERIE & SIMS,

. Hibernia Bank Building,

. New Orleans, Louisiana, ve

heat tee! o ee Attorneys for Cargill, Inc., et al._ me —

S ; “ ; qn . . ‘

{ itt Sarees

PROOF OF. SERVICE

a Benjamin W. Yancey, one of the attorneys for peti-

~ tioners herein and a-member of the Bar of the Supreme _

Court of the United States, hereby certify that” on the .

- = dayof . | ‘ , 1967, I served copies of the

~ foregoing Brief on. respondent United States of America

,by mailing a printed, bound copy thereof in a duly ad-

dressed envelope, with air mail postage prepaid, to The

Solicitor General, Department of J ustice, Washington 25,

D.C.

.,, BENJAMIN W. YANCEY Sse

4 Counsel for Wyandotte Transportation

__ Company, LP :

Pa a Intefnational Trade Mart’ ~

; (Bu ng,

New Orleans, ‘Louisiana. . a

bd er . z

8 -

~ r - : ss

: \ ’

f ° : ¢

pe .

ps:

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3 : a

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- : ne th) . ,

\ anne , .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.